New York’s high court upholds hate speech law against First Amendment challenge

New York’s highest court upheld a state law regulating hate speech on social media last week against a first amendment challenge from a libertarian legal scholar and the President Donald Trump-linked Rumble platform.

In so doing, New York’s Court of Appeals loosened the law’s interpretation in a split 4-3 decision that found the law only requires social media ​platforms to provide a way to report hate speech, but not necessarily abide by the law’s verbatim definition of “hateful conduct” or force them to respond in any way.

“The purpose of the [Hateful Conduct Law] was not to regulate networks’ moderation decisions or to compel networks to endorse the state’s view that hateful conduct is socially destructive,” wrote Associate Judge of the Court of Appeals Anthony Cannataro in the majority decision. “It was to empower private individuals—social media users—by equipping them with the mechanisms and information they need to bring hateful conduct to networks’ attention, and to identify those platforms whose policies condone such content.”

The legislature passed the law in 2022 in response to the mass shooting that an 18-year-old white supremacist committed at a Buffalo supermarket that was planned and livestreamed on social media.

The law required social media platforms operating in New York to provide an accessible way for users to report “hateful conduct” and post a clear explanation of how the platform will respond. The statute defined hateful conduct as speech used to “vilify, humiliate, or incite violence against a group or a class of persons”

In December 2022, a group of platform operators, including Eugene Volokh, a law professor and libertarian legal theorist who operates a legal blog, and Rumble, the video-sharing platform that hosts Trump’s Truth Social platform, sued New York Attorney General Letitia James over the law. They argued that the law violated the First Amendment by forcing them to “chill” free speech, adopt the state’s definition and publish statements against their will.

In his complaint, Volokh claimed that “in reality, [the law] regulates protected online speech that someone, somewhere perceives to ‘vilify, humiliate or incite violence against a group or class of persons’ based on race, color, religion or other protected categories.”

The plaintiffs successfully paused the law’s enforcement in federal district court. The Second Circuit appellate court determined that the challenge hinges on the proper interpretation of the statute, and sent it to the state Court of Appeals to weigh in on three questions aimed at clarifying the scope of the statute.

The court took up three elements of the law: the requirement to create a reporting mechanism, the requirement to publish a concise policy on hate speech and whether platforms must act on reports of hateful conduct.

Plaintiffs had argued that the law’s reporting mechanism requirement meant that social media networks had to create a tool exclusively for hateful conduct and explicitly reference to the statute’s definition. The court disagreed, finding that the only way to violate the rule is to provide no mechanism at all for reporting hate speech.

The Second Circuit had also asked whether the requirement to post a hate speech policy could be satisfied without explicit reference to the statutory definition of hateful conduct. The court concluded that it can, contrary to the plaintiff’s argument.

Third, the court concluded that the statute does not force platforms to respond to users who submit reports. The requirement is that social media companies can respond to hate speech reports, not that they have to.

Cannataro was joined by Chief Judge Rowan Wilson and associate judges Jenny Rivera and Shirley Troutman. 

In the dissent, Associate Judge Michael Garcia argued that by dismissing the requirement to explicitly reference the legislature’s definition of hateful conduct, the majority had effectively amended the law. 

He argued that the cornerstone of the law was its definition of hateful conduct, and that this interpretation is likely to cause confusion.

“Not only will the statutory terms continue to affect networks’ compliance by forcing them to either adopt that definition or accept all reports of objectionable conduct, but the uncertainty created by the majority’s distortion of the statute increases the risk of arbitrary and abusive enforcement,” Garcia wrote.

His position was joined by associate judges Madeline Singas and Caitlin Halligan.